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Monday, January 6, 2014

The issue of agunot, again, sadly, has filled the
Jewish and -- perhaps even more problematically - the non-Jewish media within
the recent past. There is indeed a problem -- and it must be addressed. What I
have noticed, though, is that the language that surrounds the discussion,
rather that furthering a solution to the problem, actually, in many ways, only
extends the problem. We talk about the agunah outside of its proper
context and, to find any basis for a solution, we must, rather, define the issue
within this proper context. The agunah problem must be placed within the
general issue of Beit Din -- and to fully develop a proper and effective
response to the matter, we must inherently deal with the modern issues in the
place and structure of Beit Din in general. It is only then that we will
be able to deal effectively with this specific issue. This, of course, is not
to say that the patently criminal behaviour that is found linked to the agunah
problem will be solved simply with this recognition but I do believe that by
properly structuring the issue within its proper context, we would be able to better
develop a method of responding to it.

Right from the beginning, though, what one may find strange
with my assertion is the implicit assumption therein contained that the
challenge of Beit Din is not already being addressed. Beit Din
would seem to be an essential part of the get process and thus, it would
seem, any attempted solution to the agunah problem must already include
the matter of beit din. The issue, however, is how we view get issues
and, thus, the role of beit din within this process. What I am
advocating for is the need to actually see beit din within its proper halachic
parameters and this is not presently being done.We should, perhaps, begin our investigation with how we
presently look at the issue of the agunah and, more specifically, the
connected perception most have of the giving of a get. In a general way,
most people look at the giving of a get as simply a religious act -- an
individualistic religious ritual done by a person, who wishes to do religion,
in a totally personal context. Beit Din is then simply seen as part of
this ritual. Defined as such, the giving of a get is, thus, simply seen
to be a religious ritual that has no context outside of the person's religious
desire to do the ritual -- albeit that there may be possible, powerful
consequences for this individual who feels bound to this religious practice.
The result of such a perception is that the one who is blocking the get
procedure -- be it the man who does not wish to give it or, and there are cases
of this, the woman who does not wish to receive it -- is solely seen as one who
is blocking another from fulfilling this personal ritual, that is, meeting this
religious obligation -- something deemed to be problematic because of the
consequences to the one blocked who, within the context of his/her religious perceptions,
cannot go on with their lives, specifically in terms of finding a new
relationship. While this description may be applicable, on some level, in many
cases, as a base for further movement on the issue, it must be recognized that,
structurally, this is not really the way that Halacha actually sees the
giving of a get in totality. Seeing the get process within this
sole and narrow perspective may actually cause further havoc in the attempt to
truly solve the overall agunah issue. We must see the issue within its
actual halachic perspective.

Within the context of Halacha, the get is part
of the general divorce proceeding. It is not an isolated personal act but an
action undertaken within the context of the court's, i.e. Beit Din's,
overview of a divorce. This is not to say that a get necessarily needs a
Beit Din, (on this issue, see Encyclopedia Talmudit 3:159) but the minhag
[custom] is that it does. Beyond this, practically, the get is part of a
process – i.e. the divorce litigation -- that often clearly must involve a
court. This is so because of the outstanding issues which are necessarily
included in a divorce break-up. Chinuch, Mitzvah 479, in defining this mitzvah
of the get, enunciates this perception. The mitzvah is that when
a man wishes to divorce his wife, he should do so through the halachic
process of a get. The get, within the context of Halacha,
is the concluding procedural element of a divorce process.

Let's expand this context. Indeed, originally, a get
could be given unilaterally -- and even against the wife's will -- by a husband
wishing to divorce his wife. This would, indeed, imply that the act was solely
a personal one and not part of a court proceeding (except, perhaps, to ensure
that the form of the get is executed correctly). Subsequent to Cherem
Rabbeinu Gershon, however, which prohibited a get being given
against a wife's will, this would seem to be clearly not the case anymore. The
fact is, though, that it was also substantially not the case even prior to the
establishment of this Cherem. T.B. Ketubot 39b informs us that
the reason why the Rabbis instituted the concept of the ketubah was to
limit unilateral action by a husband in this regard. If a husband would
unilaterally give a get, he would be liable for the full payment of the ketubah,
a substantial amount of money. A husband would thus either re-consider his
desire to divorce or wish to go to Beit Din to get permission to give a get
without being responsible for the ketubah -- thus clearly bringing the get
into the realm of Beit Din. In that T.B. Ketubot 10a presents
divergent opinions as to whether the ketubah is of Rabbinic (d'rabbanan)
or Biblical (d'oraita) origin, it may even be that this was always an
inherent issue within the Torah divorce system. The get was part of the
Torah divorce proceedings -- and especially in cases of contested divorces,
this necessitated a Beit Din.

This role of Beit Din is reinforced through other
aspects of the halachic divorce system. It may be true that Biblically a
man could divorce his wife against her will but since Cherem Rabbeinu
Gershon this is no longer an option. Unless a wife consents to receiving a get,
i.e. consents to the divorce, there is nothing that can be done outside of the Beit
Din -- for it is only a Beit Din who can take action if it
determines that a get is appropriate and a wife refuses to take one.
This is similar in the opposite case as well. While it is the husband who must
initiate the get procedure, and this must be done of his own free will,
a wife has the right to petition a court for a divorce -- that is to petition beit
din to declare that the husband should give a get. See Shulchan
Aruch, Even HaEzer c. 154. If the beit din does so order and the
husband refuses, the beit din can then take any action to force the
husband to do so -- and this is deemed to be a good get given by the
husband pursuant to his free will. See Rambam, Mishneh Torah, Hilchot
Gerushin 2:20.

Given all this, how can we now understand the get
process? In the case where both parties wish the get, there would seem
to be no issue -- it would seem similar to any other case, within any other
legal system, where there is mutual consent to the divorce. You may even want
to define it as a personal matter. The fact is, though, that even in cases
where the parties have mutually consented to a get, there are batei
dinim who would still be reluctant to proceed, believing that a get
in such circumstances is inappropriate within the parameters of Torah thought. This
would be similar, in certain ways, to other societal legal systems who would
only allow a divorce with cause. Divorce is actually not inherently solely
about personal consent. By extension, a get is not really, in any
circumstance, simply a personal, religious issue but rather – as with divorce
issues within, actually, any legal system – a matter that also inherently involves
the society and, thus, societal institutions. A get is a divorce, with
all the contextual meanings of this word – and a fundamental role of beit
din in the process is as this legal representative of Torah society.

Let us continue with the case of mutual consent, when the
parties have agreed to wishing a divorce. We can assume that, in such a case,
if there is any other outstanding issues, the parties would have also agreed on
how these issues will be reconciled or the parties would have accepted that
they would be adjudicated pursuant to given methods of conflict resolution.
Like any other litigation, there will be a resolution. By definition, in the
interests of society, a divorce will not be granted until these other matters
are worked out; the disagreement between the couple will naturally postpone the
divorce, regardless of how much the parties may wish for one. Divorce in terms
of separating the bond between the two members of the couple is part of a
greater realm of divorce in which many additional matters -- custody, property
-- must also be adjudicated. Sometimes the marital bond between the couple can
be severed before this adjudication but the process for these further
determinations must be in place or is inherently in place. If they are not, the
severing of the marital bond will, simply, within any normative legal system
not occur – not until the court has ruled on these matters. Within the Torah
society, this falls also under the role of beit din.

Let us now apply this further to the get. The two
parties, in desiring the get, may not be thinking of these additional
issues but the fact is that they are there and they have to be addressed. This
is part of the process of divorce. The fact is that when a couple, together,
approach a beit din solely to arrange for a get, the couple have
effectively agreed upon a method of dealing with all the other substantial
issues -- thus the only matter before the beit din may be the get,
seen in solely religious terms. Essentially, though, from the halachic-legal
perspective, with the giving of the get, the beit din is
inherently accepting the conclusions reached about the other divorce issues.

When the two parties, however, do not, together, approach a
beit din requesting a get, the full -- and true -- matter of
divorce in all its complexity, it must be recognized, is really the issue, not
just the get. From a halachic perspective, the issue is not
simply that one wants a get and the other does not (or is trying to use
the get as an unfair bargaining chip). The issue, from the perspective
of Torah, is that one wants a divorce and the other does not. Or the issue
concerns the corollary issues that accompany a divorce. The issue is thus
really litigation before Beit Din. It is important to note that this
litigation before beit din would also include whether the parties are
bound to any previously determined decision concerning the divorce, even by a
secular court. Once it comes to the get, it is beit din that is halachically
the final court of record. By proceeding with the get, it is inherently
accepting the other decisions as binding. It can, though, decide not to do so
and thus demand a re-adjudication of these issues before overseeing the get.

No one, in our present halachic reality, has what
you may term a right to a get. Inherently, a get is only good if
the husband gives it of his own free will. The corollary of this is that a wife
does not have a legal right to simply demand a get. Theoretically, a
husband can refuse to give a get. Of course, it may be unethical for the
husband to so refuse – and moral suasion can be brought upon the husband to
give a get – but this does not mean that the husband does not have this
right. He does. The only exception is when beit din declares that a
husband should give a get -- and a wife can request such a ruling. In such
a case when beit din, properly convened, gives such a ruling – that is a
ruling through proper adjudication that a divorce is appropriate -- the husband
should not refuse and can be forced to act upon the court’s direction. The
truth is that even in cases where moral suasion is being used to cause a
husband to give a get, this really still necessitates a ruling of beit
din. It is only a properly done adjudication before beit din that can
clearly declare the husband to be incorrect in withholding a get. Until
that point, one really can’t declare the husband wrong in refusing to give a get.
The fact is, also, if the moral suasion is done without the sanction of beit
din there may be further problems in the get being defined as one
given through coercion and thus invalid. The result of all this is that an agunah
case that demands public reaction should be, generally, really only one that
has been properly adjudicated in beit din with the husband still
refusing to follow the direction of the beit din to give the get.
This is why proper adjudication in beit din is often the real issue. In
many cases, the problems of agunot begin in the lack of a proper beit
din adjudication process – including the determination of the forum. (Post Cherem
Rabbeinu Gershon, this same argument, with halachic emendations,
applies in the opposite model of a wife refusing to receive a get.)

Two recent articles reflect the problem that I am trying to
address. This is not to say that the articles do not have legitimate points
but, I believe, they are lacking in that they do not include this perception of
beit din in their approaches. One, at http://www.thejewishweek.com/editorial-opinion/opinion/withholding-get-between-leverage-and-extortion,
does not reflect on the role of an active beit din at all. The beit
din, as with any court, is theoretically an imposing voice of authority
with the power of adjudication. A get is not solely a matter of
negotiation; there can also be judicial determination. While, truthfully, there
may still be a problem due to the limitations on the enforcement capabilities
of beit din within our society, I would argue that it is still important
to define the issue correctly. In terms of the article, a beit din’s
decision would also play a significant role in the determination of whether the
withholding of a get is leverage or extortion.

In the other article, at http://5tjt.com/false-accusations-and-the-withholding-of-a-get/,
the question posed is whether there is ever a legitimate reason for a husband
to withhold a get. The answer of the posek asked is yes, in very
particular circumstances – but this demands a ruling by a posek as such.
While the author does also refer to beit din in this context, the use of
the term posek in this discussion only reflects the problem I am noting
and adds to the confusion. A posek responds to an individual’s question;
he responds to the person asking what he/she may do. This answer, however, does
not extend to another who did not ask this posek, especially if the
other person asks a different posek. In cases that involve conflict
between individuals, the forum for such resolution is solely a beit din,
albeit that if two people agree to a single dayan to resolve a conflict,
that is also generally halachically acceptable. The person being asked, though, should then be
seen as an individual dayan and not as a posek. The author, to be
honest, actually addresses the need to hear both sides by referring to the fact
that the posek should only render a decision upon hearing from both
husband and wife. There is still, though, the problem in this language for what
is missed is the inherent litigious nature of the issue. This is a court
procedure. This is not a time to send one party off to his or her posek.
This is a time for both of them to go before beit din.

The direction of an individual posek must be for the
parties to go to beit din. What does it mean that the husband is
withholding the get? It is only a case of such withholding if beit
din has so ruled; the role of beit din does not begin just in the technical
procedure of giving the get.A contentious divorce proceeding
demands a court and that is what beit din is. If that article is
discussing a case where there was a secular decision on custody which is being
challenged and the posek believes that the challenge has a halachic
basis, this only reinforces my point. Beit din is the halachic
forum for adjudication and it is within this structure that a get is to
occur. If a posek is being asked if there is any legitimate basis,
within the case, for challenging a secular court decision on custody – that may
be a proper question. But that question can only arise because of a perception
that a get is solely a ritualistic undertaking. If the matter was before
beit din within its proper definitions, the issue would already be
before it. What is thus necessary is a clear structure for such adjudication.
(The author actually does conclude with the need for a protocol for determining
forum – which emerges from a recognition of the proper role of beit din.
While this is to be commended, I still
believe that the language of the article would still promote the present
incorrect understanding of the process and the subsequent difficulties.)

Of course, in some agunah cases, there is such a
proceeding and a husband still refuses to give a get – and gets away
with it because of the limited power of beit din to enforce its findings
within the secular world and the husband often believing he can do better by
ignoring beit din (not to ignore the cases of vice versa) – and
we still have to consider how to better respond in such cases. I have mentioned
this and do so again. Yet, in many cases, just like the one noted in this
second article, the problem would seem to be really at the beit din
level. Without a clearly defined beit din to which the husband and wife
have to go (agree to go), the two parties – sometimes, sadly, just trying to
forum shop and find the beit din that would be most approving of their
side; other times, however, because of rifts in hashkafa reflecting the
tensions in the Torah world -- remain in contention because there is a lack of
a properly adjudicating beit din in the case. This role of beit din
is actually an issue in regard to all litigious matters within the Torah
society. It is unfortunately most pronounced in the case of agunah.Within the general rules of our societies, if a couple – or
individuals within a couple – wishes to divorce, they go to court. If they are
able to work out the issues on their own, there is no need for an adjudication
on the matter by the court; the court merely rubberstamps it. If they cannot,
then the court must intervene to render decisions on the matter. There are no
games -- for the court that has jurisdiction is a given. The parties are bound
by it and know that they are bound by it. This is the first challenge in the
case of the get and the agunah. Effectively, the Torah believes
strongly in the role of beit din as the tribunal of adjudication within
the Jewish People. From the Torah perspective, you do not go to beit din
simply for a get. You go to beit din to adjudicate the matter of
a divorce. When this procedure is not working effectively, problems are clearly
going to ensue. This is an essential base issue in the case of agunah.

Practically, even with this recognition, problems still
will ensue. I don’t have all the solutions – or, practically, even some. My
goal in this piece is simply to define the issue in a manner which will,
hopefully, be more truthful to its essence and, as such, better serve it. I was
involved in one agunah case where the problem was simply that the
husband went to one beit din and the wife went to another. My solution,
when I was asked to intervene, was simply to find a beit din to which
they would both agree to go. I was actually able to do so quite quickly and
within the week the matter was resolved. I know that this was a relatively
simple case and what happened in that case will not be duplicated in every
other agunah cases. What astonished me, though, was that no one involved
in this case previously came up with such a solution. I believe it was because
I saw the issue as a beit din issue and defined the problem
jurisdictionally. This was the opening of the solution in that case. Beit din is part of Torah
life and structure. This permeates the whole Torah system but is perhaps most
felt, presently, in the case of the agunah. To solve problems in that matter,
the answer may be found in this recognition of the structure of beit din.
That may be the place to start – at least in how we speak of the issues.